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Samantha Bangham’s Week in Cases 4th October 2013

Law Reporter

And we are back! Hopefully after wonderful summer breaks, refreshed and ready for the Michaelmas term. This year it definitely felt like the courts had not been on vacation. We had a steady stream of cases throughout the summer which I am sure you have all been keeping abreast of via the summaries on Newswatch.

The first case of note this week comes from His Honour Judge Bellamy, sitting as a judge of the High Court, who is appearing ever more frequently in the law reports. His judgment in Re G (Intractable Contact) involves yet another sad case of ongoing heavily contested litigation in relation to contact between the father and the now 13-year-old child. The father was made subject to detailed restrictions on his contact with the child of direct contact only three times per year and a s 91(14) order. This was following findings that the father was extremely focused on the child, almost to the point of obsession. A psychologist advised that he would need to address these and other issues in psychotherapy and that the child should only have contact twice or three times per year. The day after the expiration of the order the father sought to extend the current contact arrangements but the mother's position remained unchanged and she accused the father of manipulating and harassing the child. The National Youth Advocacy case worker reported that the child enjoyed contact with her father and that she would like to have more contact on a more flexible basis but there was no suggestion that she wished for contact at the level sought by the father. Having considered the child's wishes and feelings, in light of her age and understanding, which she had consistently expressed, direct contact would be increased to eight times per year. There was no doubt that a further s 91(14) order would be appropriate and it would be proportionate for it to remain in force until her 16th birthday.

In another tragic children case, Re Avon, North Somerset and Gloucestershire Public Law Case [2013] EWCC 4 (Fam), His Honour Judge Wildblood released this judgment in order to draw attention to how badly things had gone wrong. When the mother was unable to care for her two children the 3-year-old child lived with the maternal grandmother while his younger sibling lived with temporary foster carers although remained in contact with her biological family. Eventually a special guardianship order was granted in favour of the grandmother and in relation to the younger child care and placement orders were made with the consequence that the children would be brought up separately. In total the case, which was by no means an unusual one, had taken 58 weeks to resolve and the siblings had been separated for that entire time. In those circumstances expedition had been essential. A fact-finding hearing was convened and abandoned shortly before it was due to start. Evidence had been inadequately gathered and medical evidence was inadequate for the enquiry of fact to be properly conducted. The options for the children had not been fully identified at the start of proceedings, there had been far too much unnecessary expert evidence and local authority concerns were not substantiated by direct evidence. The sad upshot of the case was that the siblings would be brought up separately which would have significant implications for both of them. Proper and considered planning at the outset of the case could and should have mitigated against this.

Moving on to jurisdictional matters, in Peter Jackson J's judgment in H v B the mother and father, who were of Bangladeshi origin, settled in the UK where their two children were born. When they travelled to Bangladesh for a planned visit the father returned alone claiming the maternal family had held the mother and children against their will. The mother claimed the father had abandoned the family and they were offered protection by the maternal family. The father had obtained judgment on custody in Bangladesh but issued proceedings in England in order to bolster his enforcement case. The judge found that in circumstances where the children had been in Bangladesh for 5 years, taking into account the relevant factors and applying the test established by the European court they could not be found to have been habitually resident in England on the date the father issued his application. Jurisdiction could not be founded on the basis of habitual residence. Following the decision of Re A (Jurisdiction: Return of Child) [2013] UKSC 60, [2013] FLR forthcoming, there was a theoretical basis for exercising jurisdiction on the basis of the children's British citizenship, however, in this case it would be inappropriate for the court to do so. The Bangladeshi court had long been seized of the matter and the father was able to press his case before the court.

In another international case heard by Peter Jackson J, NN v ZZ and Others (Stranded Spouse) [2013] EWHC 2261 (Fam) a fact-finding hearing was convened to determine the mother's allegations that: the father had taken her to Pakistan and abandoned there for 6 months; that she had been controlled by the paternal family; confined to the house and exploited by being made to doing excessive housework. The judge found that while the mother, no doubt experienced a lack of independence and support from the paternal family, it would be an exaggeration to regard her as having been enslaved as she had claimed. On the evidence the allegation that she had been assaulted on three occasions was made out. Although the mother had freely travelled to Pakistan, she had only intended to go for a short while and once she decided to leave it was clear that the paternal family prevented her from doing so. During the hearing a number of witnesses gave evidence through an interpreter but concerns arose regarding the statements taken from the witnesses in English, which they did not speak. The procedural irregularities were potentially unfair to the parties and witnesses. Peter Jackson J recorded basic principles in cases where these circumstances arose. This judgment is a must read for those instructed on international family matters where evidence would be called from non-English speakers.

Don't miss next week's Family Law Conference and Awards at the London Hilton, Park Lane, Mayfair, tickets are still available to purchase here! I will be attending and shall report back along with my usual family law case news in next week's column.